Female sunbather

(July 6, 2018) While awaiting action on a federal civil suit filed in January challenging an Ocean City ordinance that prohibits female toplessness in public, the plaintiffs last Friday petitioned the U.S. District Court in Baltimore for a preliminary injunction to end the restriction pending the lawsuit’s resolution.

Civil rights attorney Devon Jacob filed for the injunction on behalf of Eastern Shore resident Chelsea Eline and four others, contending that the case could drag out for years depending on appeals.

In 2016, Eline, formerly Chelsea Covington, wrote to then-Worcester County State’s Attorney Beau Oglesby seeking clarity about the legality of female bare-chestedness in public places in Maryland.

Last summer, as Oglesby awaited a legal opinion from the Maryland Attorney General’s office, the topic gained national media attention after a departmental memo from Beach Patrol Captain Butch Arbin came to light instructing staff to document, but not take action, if alerted to women sunbathing topless.

In response to that publicity, the city council last June passed an emergency ordinance prohibiting females from baring their breasts in public.

Mayor Rick Meehan said Tuesday that despite the legal maneuver asking the city to stay, or abandon, that emergency ordinance, the view of resort leaders remains consistent.

“Ocean City is not a topless beach and we do not intend for it to become a topless beach,” he said.

In the injunction motion filed last week, Jacob argues against the legitimacy of separate topless rules for men and women.

“The gender classification does not further an important government interest, but rather codifies longstanding discriminatory and sexist ideology in which women are viewed as inherently sexual objects,” the motion reads.

Jacob said the emergency ordinance violates the equal protection clause of the 14th Amendment, while also questioning Ocean City’s assertion that topless sunbathing hurts the resort’s family image.

Among the legal precedents Jacob cites is a preliminary injunction granted in the 2016 Fort Collins v. City of Fort Collins case.

In that decision the court wrote, “our history is littered with many forms of discrimination, including discrimination against women.”

The ruling went on to say, “As the barriers have come down, one by one, some people were made uncomfortable. In our system, however, the Constitution prevails over popular sentiment.”

The Ocean City ordinance from last June prohibits females from exposing their breasts with less than a fully opaque covering on the area immediately below the top of the areola. Violations of the municipal infraction are subject to a fine of up to $1,000.

Last June, City Solicitor Guy Ayres said the issue was not one of privacy, while arguing there is no constitutional right to appear nude in public.

“One does not have the right to impose one’s lifestyle on others who have an equal right to be left alone,” he said. “The equal protection clause does not demand that things that are different in fact be treated the same in law.”

Meehan said the city is still coordinating a response to last Friday’s filing.

“We will be discussing this with the city solicitor next week,” he said.

Jacob said the city has until July 27 to file a response to the injunction motion.

“The court can simply decide or schedule a hearing,” he said.

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